I still won it though, saving my client over £13,000, by proving that it was an ‘official error’, and therefore not repayable.

In the process I’ve become quite a whizz at distinguishing Hinchy (Respondent) v. Secretary of State for Work and Pensions (Appellant), [2005] UKHL 16, the leading and in my view, poorly decided case around a claimants duty to disclose a material fact, and to whom. It’s the type of case that caused Professor Smith to call the House of Lords judical panel ” a luxury the UK can ill afford”. Or something like that. In one of them there criminal law books I read at uni. I think it was a casebook.

I’m going to give some tips for any of you Googlers who have landed on my page looking for information on Hinchy. Firstly, thanks for coming, your hair looks lovely. Where did you get it cut? Oh really? It takes years off you. That top’s never out of Primark (pronounced Preee-mark in Belfast) is it? Wow. Can we date? My number is 07814 422231. Really it is. You can also get me at help@mckenziefriend.com . Text me. Love you.

What I also discovered was that the appeals process at first instance is a bit easy to be successful in if you know what you’re doing. Here are a few comments:-

There are rarely any lawyers on the other side

The presenting officers are employees who don’t see it as their job to fight the department’s case tooth and nail

There is a dearth of academic discourse on decided cases. That was a big big shock to me. No journal articles. Nada. For the average person anyway.

If you contacted the Department by phone, on the date the material fact came into being In Northern Ireland, at time of writing, there is no way to check that info. This is a huge mistake on the part of the Department. It wasn’t a factor in this case by the way, so don’t think that I won that case by default.

The tribunal panel is very informal with not much that passes for opening and closing submissions, examination in chief or cross examination. Its very chatty, and you will get your chance to talk. When you do, don’t ramble and don’t be irrelevant. Your good points may get lost in your indignation or back story.

You wont be sworn in. There is no witness box. You’re just there at a table. The legally qualified person is in front of you. If its about medical evidence there will be more than one person there.

Talk about what a material fact is

Get your file under a subject access request under that Data Protection Act

Make sure that you get the medical file as well as it may contain info that you disclosed the material fact, and to who

Firstly, its important to say that I am not an apologist for anyone who assaults any parent or child, let alone anyone who sexually assaults a parent or child. However, this needs to be said…

The vast majority of the public have absolutely no idea what goes on the secret family courts, so I am going to tell the public at large that false allegations are part and parcel of residence and contact disputes in the United Kingdom. I can’t quantify the percentage of cases where allegations are made against the father, but I have been involved in many dozens of cases as a McKenzie friend or lay advocate, and spoken to hundreds of mostly men on the phone, so I know allegations aren’t uncommon.

Despite the difficulties in divining the truth, it’s my firmly held view that the family justice system actually invites allegations by how it deals with and disposes of allegations in family proceedings. To help those of you who haven’t been caught in the machinery of the family courts, I’m going to take you through a typical scenario by way of explanation. Those who have been over course and distance know exactly what I’m talking about.

Dad is either seeing kids or mother has stopped him seeing kids, and then an allegation is made. If contact is taking place it stops. usually but not always, unilaterally, by the mother. Often times the parents have a difficult relationship prior to the allegation being made, and frequently there have been difficulties around contact.

There’s a hastily arranged and poorly informed court hearing, where the view is wrongly taken that any current or future criminal strand should take primacy. The family law process then becomes a prisoner to two even more bureaucratic and glacial systems, the police and the prosecution service. I have no idea why, especially if the case is at the circuit level when the same judges both ‘fact find’ in family cases and try criminal cases.

The strange thing here is that the answer to this abuse of process by some parties to family law cases lies in the standard of proof. My view is that if you cant prove the allegation on the lower standard in family proceedings, then you have less than zero chance of proving it to the criminal standard of proof, which is beyond reasonable doubt.

Therefore, I would prefer that the family law case is allowed to proceed at an accelerated pace, with a 30 day limit to gather and hear the evidence (if there is any corroborating evidence), and a further 30 days in which to hear the case. Not the 12 to 18 months that it currently takes when the family court is derelict in its duty to both the ‘bests interests of the child’ and the ‘no delay principle’, by handing primacy of the case to others.

By way of a footnote, I absolutely understand that if the allegation is about the harming of the child that contact should change, but should not automatically cease, especially when the child makes no disclosure after a Joint Protocol Interview, or the allegation is made by the mother despite her not having witnessed anything.

It is arguable that the state’s action is disproportionate in stopping contact, as the state doesn’t automatically remove those accused of the rape or sexual assault of an adult from their children’s lives, so it can’t be the fact that there is an extant rape allegation that is the ‘reason’ for contact ceasing. The ‘reason’ is that the parents no longer live together, and one chooses to act tactically by pressing for contact to cease, or not to be considered until the allegation is eventually adjudicated on.

And what of the false allegers? What happens to them? In a word, “nothing”. They don’t get charged with perjury or with wasting police time, and suffer no penalty in costs. They don’t get their legal aid stopped, or even get sent on a course. Their work isn’t allowed to be told that they attempted to have an innocent person charged with a serious crime. They don’t even have to apologise. Their lawyers don’t have to give their fees back, despite knowing that their client’s case was weak. The only people that suffer are the father and the child, who are deprived of each other until the court says otherwise.

It’s little wonder that false allegations are so prevalent in family proceedings, when there is no punishment for bringing them. That needs to be corrected as a matter of legislative and judicial urgency.

I understand that not every allegation is false, and not every father innocent. They are however, innocent until proven guilty.

The standard response in a dispute over children is to go to a solicitor. What folly and cost that can be for everyone involved. It is also a huge burden to a struggling legal aid system, in a county that is trapped in a Great Depression era moment.

An alternative to a solicitor is to go to a mediator, but that can be worse than a solicitor as there is such demand for mediators, and in my experience, they aren’t much use to man nor beast when you get there. Sorry all you mediators out there, but in my experience its true. You try so hard to be impartial that you get hamstrung even when confronted with bare faced lies. There is an additional problem in that you are mostly from Helen’s Bay, and your clients are more Tigers Bay, so it’s a mismatch and children, parents, and other relatives are being badly served as a result.

” So brainbox, what do you suggest?? Huh…huh?” .

Well Mr or Mrs Heckler, I suggest a community level solution. People trained to resolve disputes on the Shankill and Falls and other working class areas throughout the UK. People with experience of rearing children who can knock heads together. Straight talkers who take no BS. A peoples court, for the people, by the people, of the people and accountable to the people. Not another elite of judges, lawyers, social workers and mediators, all people who are unable to understand the position that the working class parent finds themselves in at that time.

Here’s the catch. The existing elites don’t want it to happen, as they need your money to drive flash cars with personalised number plates, and to send their children to fee paying schools. And they don’t like it up them. They love the conflict of family law, with the public and private payers money rolling into their bank accounts. While you cant get to tuck your kids up in bed, and suffer delay after delay.

Let’s hit them where it hurts, in the client account. Solve it yourself. It’s not that difficult to do. We do it at www.familycourtsupport.co.uk

Before I get into the body of my views on contact centres, you, the reader best take a look at this press release from Alison Houston,
Judicial Communications Officer at the Lord Chief Justice’s Office, which purports to contain comment from Mr Justice Stephens.

Here’s the link, but I’ve replicated it in full underneath. It is a press release after all…

Embargoed until 21.00 on 23 February 2012

Thursday 23 February 2012

JUDGE SAYS CHILD SUPPORT CENTRES ARE A VITAL SUPPORT

Mr Justice Stephens, a High Court Judge, today paid tribute to the work carried out by volunteers when he spoke at the opening of a new Child Contact Centre in Ballynahinch.

Praising the role of child contact centres, Mr Justice Stephens said they provide a safe, friendly and neutral environment where children of separated families can spend time with one or both parents and sometimes other family members. He said it is essential in cases of separation to maintain and develop, if possible, contact between children and their non-resident parent:

“Many couples after separation manage the decisions about contact on their own, with little or no external support. However arranging child contact post-parental separation is for many families an ongoing and contentious issue. Many families require external help to make contact happen and [centres such as this] provide that service.”

Mr Justice Stephens said that contact centres not only enable contact to take place but enable parents to build their own confidence in the contact arrangements so that contact can move incrementally, at a pace dictated by the child, to activity based contact outside the centre, then to a neutral venue in the extended family or with a close friend, and then hopefully to contact in the non-resident parent’s home and eventually to overnight and holiday contact.

The judge said it was important to highlight a number of essential features of Child Contact Centres:

The service provided is independent. The staff do not report back to the courts or social services. The staff do not take sides – they are not on the side of either parent or on the side of the child protection authorities.

The centre is neutral. It offers neutrality in venue, staff and service to families.

The centre provides a safe, secure, warm and friendly environment.

The staff are fully trained to stay impartial and not to take sides in any conflict.

The Ballynahinch Child Contact Centre is accredited by the National Association of Child Contact Centres and is part of the Northern Ireland Network of Child Contact Centres. This means that families can be reassured that staff conform to the national standards. It also means that staff can keep up to date on developments and changes in society and how these impact on families.

Mr Justice Stephens concluded by saying that the profile of Child Contact Centres deserves to be raised because of the contribution they make and the professional services they provide:

“We are indebted to those people who work in Child Contact Centres and that work deserves to be recognised. We are fortunate to have a Northern Irish network of child contact centres and I would like to encourage as many other local communities as possible to think in terms of providing similar services.”

ENDS

If you have any further enquiries about this or other court related matters please contact:

Firstly, my post is not a go at the staff at the contact centres locally, as they are generally well meaning individuals, charitable and giving of their time. However, there should be little if any need for them to give up their valuable free time at all. And here’s why.

The reason there are contact centres is because magistrates’ and judges wont face their brother and sister lawyers down, mostly over itsy bitsy disputes, that most of the public would be horrified to discover are viewed as justiciable issues.

Contact centres are akin to rewarding truanting school children with a trip to a theme park. Mothers who stand in the way of contact need to be dealt with swiftly and severely, to ensure that contact continues in a normal manner and not at the mother’s pace, (or oft-times the mother’s solicitor or barristers pace).

That’s it in a nutshell. No appeasement or pandering to the mother over her concerns that she didn’t have when she was together with the father of her child. Then she had no problem leaving him in charge of the children whilst she went out with friends or on hen weekends. No, she had no concerns then, but she has now, and of course she must be listened to.

Errr, no actually. The mother and her lawyers should be told in no uncertain terms that unless they prove within 72 hours at a fact finding hearing that the child is at risk of harm, the court WILL order at LEAST substantial overnight contact and a Shared Residence Order. And until that hearing can take place, if the mother is so keen to avail of a contact centre there should be a charge of £150 per hour TO THE MOTHER for the use of the contact centre. Payable by her, not the father or Legal Services Commission.

At that stage, most piddling disputes would come to a shuddering end, cases would be shortened and normalcy would be achieved without huge cost to the public purse. And we could pay off some of the national debt with the money saved; or pay for more teachers; or build a new hospital or two, or employ more nurses. Not line the pockets of lawyers with public money.

If that were to happen, the brother and sister lawyers of the judge or magistrate would need to start praying for a crimewave, or an increase in house sales to make up the difference in lost earnings.

Who says this? I say this; a McKenzie friend in courts across the UK, who has heard some of the biggest load of codswallop over almost 15 years from both lawyers and their clients.

Feel free to let the Justice Committee and/or Alison Houston at the Lord Chief Justice’s office know what you think of contact centres in Northern Ireland. I for one don’t know any parent who enjoyed the experience, and I doubt whether anyone ever properly parented their children in a draughty church hall with worn out toys and strangers to their left and right. And I doubt if any of the children preferred being in a contact centre to being cared for by their father and his family.

The background to the above Tweet is that I had a dad call in to see me today who had not seen his child for 3 weeks, and who had convinced himself that he wanted to make an application to court to get to see his son. He was certain that his ex couldn’t be mediated with, and that only an order would do. I wasn’t so sure, as to me it was a bit of a non-dispute, that had it’s root in both of them failing to understanding the difference between clear consent and ambiguity of intent.

I asked him for his phone and started to draft a text to his ex. I let him read it through, and he ok’ed it being sent. Within a minute an encouraging reply came back. I repeated the process twice more, with the result being that he will be seeing his son as before, with contact resuming this Sunday.

If my client had been to a solicitor, he would have been at the beginning, not the end of his journey back to having contact with his son. Litigation would have put that dad on a hamster wheel of letter tennis, adjournments, contact centres, stress, bills and frustration. Many months would have passed and any trust that existed on either side would have long been extinguished.

As someone who normally deals in very high conflict cases; those that are (in my view) incorrectly categorised as ‘intractable’, this is not uncommon. And whilst I don’t want to give my magic secrets away, it isn’t the first time I have made contact happen this way. It is however, the first time I have blogged about it.

My message to the McKenzie friending and lay advice community in family law is NOT to feel compelled to rush to expensive mediation or litigation to resolve a dispute. The great lie that the vocational legal community are loathe to talk about is that consent needs willing parties, not warring lawyers.

My sagely advice is to try to understand the nature of the dispute from both sides first, and don’t fall into the error that solicitors fall into with their ‘my client, my client’ mentality. The parent and his or her children will thank you for it.

Lest anyone get the impression that I am a crane climbing, superhero costume wearing, purple powder throwing, card carrying member of any of the F4J’s; unable to say anything positive about members of the judiciary, this post should go some way to disavow readers of that notion. Regular readers of the blog will recall that I reported on a positive experience involving Master Redpath before, so I feel I have a history of giving credit where it’s due to members of the judiciary.

Our regulars will also recall that I have been bleating on for over a year about a litigant in person list, so that litigants know when they are on. More like a doctors surgery, and none of this dozens of cases listed for 9.30am nonsense, and the poor self litigant not getting in until all the clever lawyers have finished their machinations around midday.

Whilst that experience some while back with Master Redpath wasn’t totally unpleasurable, it wasn’t anywhere close to how I am used to being treated in England and Wales. The experience today in front of Master Bell in Belfast was much closer to how it should be done.

Do read on…

I was in front of Master Bell in an Ancillary Relief case that I had been asked to assist in at short notice. My client had run out of funds, owed their lawyers some money and had to represent themselves. [ Experienced McKenzie friends and lay advocates with be thinking ” WHAT ABOUT THE FILE?? HOW ARE WE GOING TO GET THE FILE IF A LIEN IS EXERCISED ON IT???” Well you lot in the cheap seats can just shut up and let me get on with my account of this hearing].

I hadn’t perused any of the papers in this long running case, and as my client had very recently parted company with their solicitor, there weren’t any papers to read beyond the usual ragtag shopping bag full of papers that clients seem to accumulate. I didn’t even have time to read them anyhow.

Arriving around 9.20am I knocked on Master Bell’s door and introduced myself to him, and shortly thereafter the other sides solicitor popped their head round the door. Following my submission that I would be grateful if my client could be heard first, Master Bell invited us to find counsel and return anon.

Master Bell listened to everything that my client had to say, and I at least left feeling that we had been heard. I was also impressed that Master Bell also scolded counsel on more than one occasion for attempted point scoring, instead of this faux joint telling off that some Magistrates such as Mr Magill seem predisposed to give. Master Bell also let me speak on behalf of my client and the hearing had a very collaborative feel to it. I must also commend counsel for quickly grasping that the case couldn’t proceed. All in all, a relatively stress free introduction for my client to the challenging job of self representation.

Although I wouldn’t dream of being so bold as to suggest this formally, if I were Sir Declan Morgan, the Lord Chief Justice of Northern Ireland, I would have no hesitation in appointing Master Bell to any future committee considering how to respond to the increasing numbers of litigants in person in the Northern Ireland family courts. Master Bell did a fantastic job today, and I commend him for his even handed approach; and I have every expectation that we will get a fair hearing in front of him if the case can’t be settled by negotiation.

Just in the airport lounge at Liverpool after a most excellent seminar on ‘Thorpe’s Law’, otherwise known as the Leave to Remove law in the UK after Payne -v- Payne.

Excellent organisation by Emlyn Jones and top quality contributions from Mike R0binson of Custody Minefield fame.

This seminar had particular resonance for me as on Thursday I was in front of Thorpe and Etherton LJJ and Morgan J in London. They kindly granted me a right of audience. The LJ’s granted permission to appeal but rejected the substantive appeal. I will publish the judgement here when its available.

0. INTRODUCTION This briefing note examines the newly enacted Part 2 of the Children, Schools & Families Act 2010 (c.26) [“CHSFA”] which originated from Lord Chancellor Mr Jack Straw and the Ministry of Justice and which purports to improve “transparency” or open justice in relation to the reporting of Family proceedings in the courts, particularly proceedings relating to children. It will be shown that it does the very opposite and that in a number of respects the position for open justice is now much worse than under the law the Act will replace. That law is still in force because the CHSFA although enacted is not yet in force: Part 2 comes into force when the Lord Chancellor makes the appropriate order by statutory instrument [s.29(4) of the Act].

1. THE CURRENT LAW For the purpose of the contempt law and reporting restrict-ions on Family proceedings heard in private (as most are) there is a sharp distinction between proceedings wholly or mainly about the upbringing or maintenance of children – principally Children Act 1989, Adoption and Children Act 2002, Child Abduction and Custody Act 1985, and Wardship – and other Family proceedings such as under the Matrimonial Causes Act 1973 (divorce, judicial separation, nullity, and ancillary relief), the Civil Partnership Act 2004, or Part IV Family Law Act 1996 (non-molestation orders & occupation/exclusion orders in relation to residential property as between “associated persons” such as spouses and cohabitants and relatives). The first class will be referred to simply as “child proceedings”.

2. Child Proceedings The current law is that it is a Common Law criminal contempt (declared in s.12(1)(a) Administration of Justice Act 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are). Information means substantive information about the content of the proceedings, such as submissions, evidence, expert reports, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings, their photographs, the fact that a child was the subject of such proceedings, the nature of the dispute in such proceedings, nor the orders of the Court – see for example X v. Dempster [1999] 1FLR 894. These could all be published without contempt. “Publication” is in the wide sense of defamation – to any third party – and includes communications in purely oral form. In April 2009 the Family Proceedings Rules 1991 were amended by SI 2009/857 to generally allow accredited members of the press to attend any Family proceedings heard in private (new Rule 10.28), including child proceedings, but not affecting the law relating to reporting by the press. The same Statutory Instrument also added a new Part XI to the FPR 1991 entitled “Communication of Information: Proceedings Relating to Children”, which relaxed the contempt law for communication of such information at an individual and institutional level, but not in relation to communicat-ion to the general public. Indeed, r.11.2(2) states:“Nothing in this Part permits the communication to the public at large, or any section of the public, of any information relating to the proceedings”. Any relaxation of the contempt law in child proceedings heard in private to allow publication to the public at large would require, it was thought, as a matter of law, primary legislation. Hence the new Act.

3. Additional to the contempt law, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing any material to the public or a section of the public intended or likely to identify a child as the subject of child proceedings in the High Court, County Courts, and Magistrates’ Courts [but not the Court of Appeal], and this actually applied whether the proceedings were in private or in open court. In Clayton v. Clayton [2007] 1FLR 11 CA the Court of Appeal held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular, in newspaper reports or on the Internet and to the public generally.

4. Other Family Proceedings Contested matrimonial causes are heard in open court and can be freely reported, subject to certain limitations on the content of the reports imposed by the Judicial Proceedings (Regulation of Reports) Act 1926. Proceedings for ancillary relief are normally heard in private and very little can be published because of the rule of law which makes it contempt to publish evidence obtained under compulsion until such evidence is read or referred to in open court. In ancillary relief there is a strict legal duty of full and frank disclosure. But there is no restriction on identification, including of any children of the parties. The same situation applies in civil partnership proceedings. In theory an ancillary relief case could fall within the category of child proceedings if the case happened to be wholly or mainly about child maintenance, but that is extremely rare as the proceedings will almost invariably be wholly or mainly about financial provision for the adult parties. As the CHSFA specifically excludes matrimonial and civil partnership causes and matters from its scope there is no change in the law here and these will not be considered further.

5. Proceedings under Part IV Family Law Act 1996 are usually heard in private but even if children are involved they are not about the upbringing or maintenance of children and there is no application of s.12(1)(a) Administration of Justice Act 1960. However, it would seem possible that if a welfare question about a child arose in such proceedings then s.97(2) Children Act 1989 could apply, because by s.10(1) of that Act the Court could then exercise its Children Act powers even on its own motion, and s.97(2) is worded to include any proceedings in which powers under the Children Act 1989 may be exercised. In general though, in non-molestation order and occupation order disputes between adult parties there is no overlap with child proceedings and s.97 will not apply. In any event, following Clayton v.Clayton supra, s.97 does not apply once the proceedings are concluded. There is therefore generally no legal restriction on publishing information with identification about Part IV Family Law Act 1996 proceedings, and certainly none once the proceedings are concluded. This is confirmed by case law: see Clibbery v. Allan [2002] 1FLR 565 CA where the Court of Appeal held that an aggrieved Ms Clibbery could publish the evidence in the case. The same conclusion applies to any other non-child proceedings.

6. THE NEW LAW The CHSFA repeals s.12(1)(a) Administration of Justice Act 1960 and s.97(2)-(6) Children Act 1989, and ss.11-21 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but matrimonial or civil partnership causes and matters are excluded from the Act – s.11(4)(6)). They apply only to proceedings heard in private and to both ongoing and concluded proceedings [s.11(1)]. A new statutory contempt is created by s.11(2) covering the “publication of information relating to the proceedings” unless (and only if, apart from specific leave granted by a court) any of 3 exceptions applies, in which case there is no contempt. These are [s.11(2)]:-

(a) an authorised publication of the text, or a summary, of the whole or part of an order

made or judgment given by the court in the proceedings (see section 12);

(b) an authorised news publication (see section 13);

(c) authorised by rules of court.

It is important to realise that “information relating to the proceedings” now doesinclude identification information – see the interpretation section 21 and ss.12,13. Information identifying or likely to identify parties, witnesses, or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). It makes no difference whether the proceedings are ongoing or concluded [s.11(1)]. As regards (c) there are no rules of court authorising publication to the public at large, but as seen above, FPR 1991 Part XI authorises various categories of disclosure in child proceedings to individuals or institutions. It would seem likely that similar rules of court for non-child proceedings would be made when Part 2 of the Act comes into force to allow similar disclosure other than to the public at large – but the fact that such rules would be necessary at all demonstrates already that in relation to non-child Family proceedings such as under Part IV Family Law Act 1996 the new Act removes the general freedom to publish which exists under the current law.

7. Orders of the Court CHSFA s.12(1) provides that, in the case of adoption proceedings, and in the case of other Family proceedings where publication of the text or summary of an order contains identification information relating to an individual involved in the proceedings, publication of an order of the Court is only an authorised publication under s.11(2)(a) to the extent that the publication of the text or summary is permitted by the Court. This is much more restrictive than the current law where there is no restriction on publication of orders in non-child proceedings, and none in child proceedings once the proceedings are concluded (Clayton supra).

8. CHSFA s.13(4)(5) imposes the same restrictions on authorised news publications under s.11(2)(b) in relation to orders of the Court, except that professional witnesses may be identified. The net result is that neither the press nor anyone else can publish adoption orders, or orders in any other Family proceedings containing identifying information (except the press if present in court, but not anyone else, can identify professional witnesses), without leave of the Court, and whether the proceedings are ongoing or concluded. Thus far from increasing transparency the very opposite is achieved and Clayton v. Clayton is statutorily reversed. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton – see link to recording at http://www.parents4protest.co.uk/media/itvthismorning270409.wmv.

9. Judgments of the Court By s.12(2) publication of the text, or a summary, of the whole or part of a judgment given by a Court in Family proceedings, child or non-child, is an authorised publication only to the extent that the publication of the text or summary is permitted by the Court. Similarly by s.13(5) such publication is an authorised news publication only if permitted by the Court. For child proceedings this is exactly the same position as under the current law. For non-child proceedings the opposite of increased transparency is achieved because judgments which currently can be freely published are now made subject to publication by leave of the Court.

10. Other Information The Act does not define “information”, but as that includes identification information it seems clear that the term is to be construed in the widest sense. In particular, the information in child proceedings that can be published without contempt under the current law, such as the nature of the dispute and the identities of parties, child and witnesses, and information generally of any kind in non-child proceedings, now falls within the term and publication will be a contempt under the Act unless falling within one of the exceptions of s.11(2)(a)(b)(c). Concentrating now on publication to the public or a section of the public, where currently (c) is vacuous, it follows that the only publications authorised to be made by someone other than an accredited member of the press present in court, under s.11(2)(a), will be, absent leave of the Court, non-identifying orders of the Court (excluding adoption altogether). In particular that applies to any party in the case.

11. So a party could publish anonymised orders or summaries of orders like, “Mother A obtained a Residence order under the Children Act 1989 in respect of child B at Bow County Court on 1 April 2011”, or “A woman was ousted from her house in Forest Gate E7 by a man in proceedings under Part IV Family Law Act 1996 at Bow County Court on 1 April 2011” – but absolutely nothing more and they would be in contempt if they identified themselves as a party in the case. Thus for individuals who do not have the privilege of being accredited members of the press, the only information they can publish is worthless triviality. This contrasts with the limited but useful information that can currently be published with identification in child cases, and the freedom to publish any information in the non-child cases. Thus the Act totally destroys the existing publicity available to parties in Family proceedings. The Lord Chancellor has not only statutorily reversed Clayton v. Clayton but also Clibbery v. Allan. It remains to consider what the press and media can publish under s.11(2)(b).

12. Authorised News Publication This is defined in s.13 of the Act and publication is allowed subject to a series of Conditions. Condition 1 [s.13(2)] is: “the information was obtained by an accredited news representative by observing or listening to the proceedings when attending them in exercise of a right conferred on accredited news representatives by rules of court”. It has already been seen that other Conditions in s.13 prohibit publication of adoption orders, identifying orders, and judgments, without leave of the Court. In fact, Condition 3 [s.13(4)] prohibits the publication of any identification information and any sensitive personal information (even without identification) relating to the proceedings, and certain other adoption information, without leave of the Court. “Sensitive personal information” is defined in Schedule 2 to the Act and includes any information provided by a child to a party, witness, or other person, and information relating to anyone’s medical psychological or psychiatric condition or treatment or evaluation, or to health care, treatment or therapy for any person. It should be noted that the accredited news representative cannot obtain the publishable information from a party, only by being present in court.

13. Authorised News Publication – Non-Child Proceedings Here transparency has been grossly decreased since under the current law the press can freely publish any information they can obtain from any source and do not have to be present in court. They do not need leave of the Court to publish anything, for example, about Part IV Family Law Act 1996 proceedings and a party can freely communicate the whole content of the proceedings to the press without the news representative having to sit in court. The press were not in court in Ms Gloria Clibbery’s 1996 Act case but they were at liberty to publish, and did, whatever she chose to communicate to them about the proceedings. Under the new Act Ms Clibbery could not even talk to the press about her case, let alone publish anything herself or through the media. She would not be able to publicise any injustice suffered or any information about the way the 1996 Act and the Court had operated in her case. If the press were in court they could not identify the parties or publish pictures, nor publish the judgment; anonymised orders and evidence would be publishable if no sensitive personal information was included.

14. Authorised News Publication – Child Proceedings Here there has been a very modest increase in transparency in that if present in court the press could publish anonymised oral evidence and advocates’ submissions, provided that no sensitive personal information was included. In practice it is likely that a great deal of important evidence in the case would fall within the scope of sensitive personal information since anything the child had said to anyone would fall in that category. Much, if not all, of any expert reports would fall in the same category, the all-important Cafcass report included. The judgment could not be published, leave of the Court apart. This is bizarre in that the judiciary have historically been much more sympathetic to the idea of publishing anonymised judgments than the evidence in child cases. At the same time there has been a significant decrease in transparency in that Clayton v.Clayton has been reversed and information that could be published without breach of s.12(1)(a) Administration of Justice Act 1960 can now no longer be published.

15. In practice any slight gain in transparency is virtually worthless since the press will not be able or wish to meet the onerous requirement of having to be present in court save in a very few select cases and the media are not generally interested in reporting anonymised cases devoid of human interest. The lack of a right to publish the Court’s reasoned judgment would also be seriously inhibiting.

16. CONCLUSION In relation to non-child Family proceedings the position for open justice is far worse than under the current law, with severe new restrictions imposed. In relation to child proceedings there are new restrictions but also a modest gain for the press only, which in practice will prove largely worthless as the press will rarely take it up. For other than accredited press, in particular parties, the position is much worse and the new law will reduce them to silence in both categories of Family proceedings. The Lord Chancellor’s Act is a massive confidence trick.

17. Example 1 A woman is ousted from the home she owns by her non-owning cohabitant, under an ex parte Court order founded on perjured evidence, leaving the children with him in the house. She fails to successfully set the order aside on the return date, due to lack of time to prepare and lack of resources as she is not eligible for legal aid. The judge is naive and biased and unable to distinguish fact from fiction. The case, under s.36 Family Law Act 1996, is heard in chambers and although the woman asks press reporters to attend, none do. She is very aggrieved at the injustice suffered and the way the legal system and court has worked against her. She wishes to publicise what she has suffered and write articles about reforming the law, based on her own experience. Under the current law she can write about and publish any material from the proceedings, including the evidence and judgment and orders, with full identification. She can set up a website for this. Or she can speak to the press and the media can use whatever information she gives them, and material from the proceedings, and publish in print or in a broadcast any of it with full identification. Under the new Act, however, she cannot publish anything at all to the public at large, except the bare anonymised ouster order in a way not referable to herself. She may be able to talk to individual members of the press (if rules of court were made permitting that) but they cannot publish anything in the media about her case because none of them were present in court. Thus so far as publicising injustice is concerned, she is reduced to silence.

18. Example 2 In care proceedings heard in private under the public law sections of the Children Act 1989 a child is wrongfully removed from his parents by the local authority on the flimsiest of evidence and in reality to meet adoption targets laid down by the government of the day. In due course the Court makes a care order, the child is put up for adoption, and the parents lose their child for ever. Under the current law the parents could at least identify themselves and children (once the care proceedings are concluded) and complain publicly of injustice suffered, within the limited scope of publication that does not occasion a s.12(1)(a) Administration of Justice Act 1960 contempt. Under the new Act however, the parents could not identify themselves or publish anything at all other than a pointless anonymised care order not referable to themselves. If they spoke to the press then the media would not be able to publish anything more either. If the press were in court then the anonymised order could be published but not the judgment; in the nature of things much in care proceedings hinges on expert reports and the child’s own account of events – but this will nearly all be sensitive personal information and as such not publishable; since much of the crucial evidence would not be publishable and since the judgment of the Court giving its verdict on the evidence would not be publishable (sans leave), it is hard to see that the media would have a publishable story or stamina to sit through the proceedings.

19. THE PRIVILEGED PRESS It used to be thought unwise to have legislation referring to or singling out or defining the press, the danger being that this would be the first step on the road to legislation regulating the press and limiting freedom of speech, so best avoided in a free and democratic society. S.21 of the Act defines:-

“accredited news representative”, in relation to any proceedings, means a representative of one or more news organisations who is a member of a class of representatives of news organisations on which rules of court confer a right to attend the proceedings;

– hence the State will now decide via a Rules Committee what news organisations will have the privilege of being able to send which class of representatives to observe and report on Family proceedings heard in private. Coupled with s.13 of the Act defining authorised news publications (Condition 1 being actual press attendance at court), this conveniently prevents media reporting by the time honoured method of gathering information from the parties and witnesses and lawyers themselves, and greatly limits the likelihood of anyone being present in court who has the right to report on a case.

20. Further, it puts the press in the invidious position of being a censor of what the public shall know about Family proceedings in the courts. It is said that the press are the eyes and ears of the public, but if they are privileged to be the only eyes and ears and no one else is allowed to observe and publish for themselves if they can find an audience, then the press become the arbiters of what the public shall be entitled to know, which is simply a form of censorship. I do not want the press deciding what I shall be allowed to know about court proceedings heard in private anymore than I want the government or the judiciary to decide that. If accredited press who happen to be in court can publish, then I fail to see the logic of denying the same right to the parties, who will have greater knowledge of the whole case and sharper motivation from what they have gone through at the hands of our laws and legal system.

21. Or rather I do see the logic and it is again the logic of the confidence trick – the Lord Chancellor can pretend he has opened up the courts in Family proceedings heard in private and show a form of transparency while denying any real substance to it, conveniently suppressing the voices of those with the greatest reason to speak out.

Sorry for the hiatus, but was on paternity leave after the wonderful Mrs McKenzie produced yet another beautiful baby McKenzie. I have been doting on my son, as new father’s should do.

I did keep one case in my list though; a Leave to Remove case at Circuit level in England. How I wish I hadn’t as I am thoroughly ashamed of what currently passes as binding precedent in the area of International Relocation.

Payne-v-Payne [2001] EWCA Civ 166 is supposedly the leading authority, and for those of you not familiar with the area you should read the case here. The latest case of note is Re D (Children) [2010] EWCA Civ 50 which was an unsuccessful permission to appeal hearing by a litigant in person father. There is a transcript of the judgement and some comment on the Family Law Week site here.The site contains the essential links, including an interesting article by Clare Renton here.

Case was listed for 2 full days and the father had to sit and listen to 2 days of evidence from mother and stepfather, who had already moved out to Australia (stepfather not mother and stepfather). The child was 8 rising 9 and had told CAFCASS on the six occasions she was spoken to by CAFCASS that she wanted to live with her dad. CAFCASS noted that she was bright and articulate.

Father of course was a litigant in person and I was granted a Right of Audience for the final hearing. Counsel was a male barrister who was dignified, knowledgeable and courteous. As seems to be the norm in England, there was no solicitor in attendance.

Leave to remove was granted, despite father having what I and others viewed to be a winnable case.

I can’t say much more as the case is soon to darken the doors of the Court of Appeal, and the N161 is being worked on at this moment.

I hope that the comments of Wall LJ who is now the President of the Family Division still stand where he said that:-

33…There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and ignores or relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent.

34. As I say, this is a perfectly respectable argument, and would, I have no doubt, in the right case constitute a “compelling reason” for an appeal to be heard. The question, to my mind, is twofold: (1) has the time come to reconsider Payne v Payne; and (2) is this the right case? I propose to concentrate on the latter question, since in my judgment both have to answer “yes” if permission to appeal on this ground is to be granted.

I note with healthy scepticism that his Lordship did not answer the question posed in the first limb of his own test. It does not follow from his comments that the now President supports a review of Payne, and even if he does he will likely be opposed by some other senior jurists as well as those groups with an ideological and vested interest, who are well resourced when it come to commissioning and producing ‘research’.

An ex parte (without notice to the other side for the non legals) Interim Residence Order granted for a grandfather in his late 60’s/early 70’s.

Best bit was that there is a hearing next Wednesday where a final decision will be taken!

Oh how I laughed.

In reality it would take CAFCASS about 10 weeks to allocate a reporter, a return day to court would be months not a week away, and no decision could be reached except by consent within a week.

I fully expect CAFCASS to be bleating on about how following Coronation St their officers are now under increased pressure to produce reports in double quick time, and they need more money otherwise the service will collapse…..TIMMMMMMBERRRRRR…

This article is likely to offend most people who read it, and I don’t make apology for that as most people who read this blog are legally minded people including those in the legal profession, judiciary and expert witness pool. It is their Karmic duty to be offended for some of the questionable things they have done in their careers that resulted in a child losing contact with a parent and that parent’s family.

The latest contact denying tactic that seems to be doing the rounds is Post Traumatic Stress Disorder (PTSD). PTSD is increasingly being relied upon as a reason why a parent cannot have contact with their child(ren). It’s turbocharged ‘mothers anxiety’, and can bring the shutters down on contact, or more properly keep the gate that was once ajar closed on contact for good.

Here’s how it works…

Mother’s says she was a victim of domestic violence and doesn’t permit contact, no urgent fact finding is held to protect child’s relationship with father and all contact with child ceases. Many months pass with adjournment after adjournment and judge taking a ‘huff and puff’ approach to coercing mother to permit contact.

Eventually contact starts again regardless if DV proven or unproven.

Mother realises that contact is going to ‘bed’ in and suddenly decides that she may be suffering with PTSD and cant possibly countenance contact until diagnosis and treatment, the latter part of which she cant see happening for an unspecified time. An expert selected by her solicitor and paid for by legal aid agrees with mother in a report, and it all gets kicked into the long grass, or more properly into the abyss. Father doesn’t have the resources to instruct his own expert. Appeal court would rightly conclude that decision was open to judge on evidence heard

Game over.

Or is it? Let’s rewind a bit…

The corollary of this should surely be that in the absence of the mother engaging in therapeutic treatment aimed at restoring contact the court should consider removing the child from the mother if she is so impaired that she cannot tolerate contact?

If only it worked like that as the hired gun expert can’t agree with that position as he realises that there will be no more referrals from solicitor A who has instructed him or her many times. Or maybe he just doesn’t believe it?

I am sure our readers who work in family law have heard or been involved in an impasse such as this.

A potential solution to this is for the British Psychological Society and other bodies to ensure that a substantial pro bono commitment is part and parcel of membership, and make it accessible to all, including litigants in person?

Was back in front of him today and had a totally different experience, and in the interests of fairness I thought I should tell you about it.

A very endearing barrister came round and spoke with me. No posturing about ‘I can’t talk with you, as you are only a McKenzie friend’. They spoke with me about the case and we reached a level of agreement about how to proceed.

He then spoke with the Master’s clerk and we got in at the end of the callover. And the extremely busy Master allowed two McKenzie friends in and it was all very civil, as it should be.

I don’t want to name the barrister as they may get ribbed for being so civil, but their name has been noted, and next time a client needs a calm, professional counsel, that person’s name will be foremost in my mind.

The sooner counsel ‘court’ professional McKenzie friends the better it will be for their business.

In preparation for taking the short journey by ferry from Belfast to Stranraer to McKenzie friend, everyone in our office practised being ‘back seat drivers’ . If we had’ve continued with such legal athletics we would likely have ended up with neck strains, arms like Tyson and calf muscles like bison. Have you ever tried to lean forward holding 500 pages in a lever arch file? One of our guys suggested a fitness test should be compulsory if planning to work in Scotland. How we laughed!

Worryingly for those interested in true access to justice the restriction at 5 (iii) should mean that no-one can receive payment for McKenzie friending in Scotland…and I mean no-one. That would include employees of any of the many excellent Scottish groups that potentially provide services to litigants in person such as the CAB, as I fail to see how an employee of one of these organisations is exempt from 5 (iii)?

The no payment angle was part of Ian Hanger QC’s submission to the Committee, and I am sure the committee were delighted to see such a notable as the original McKenzie friend say ‘HE’S LAY – SO YOU CAN’T PAY!….

‘HURRAH!!’ must have come the paternal and protectionist noises from the massed ranks of the legal profession and their brother and sister judges. The beginning of the end for some of them had been postponed, and they had just been handed what they thought was the stake that would spear the evolutionary product of McKenzie friends – the big bad LAY ADVOCATE – the previously unstoppable walking talking action man and woman with moving eyes and mouth.

If this ridiculous restriction on access to justice is allowed to stand in Scotland it will leave only the independently wealthy, retirees, dole-ites and students skiving off uni as potential McKenzie friends. Just as the establishment wants it – an uneducated or transient opposition, unlikely to ever get enough experience to have a strategic influence on the law. It will also mean that our trips to Stranraer will be for pleasure only.

A begrudging, bedraggled vested interest attempt at legal drafting? Prospect of being passed into law with 5 (iii) in its current form? In the negative integers I would say.

‘Dr Pelling may be unqualified but he is plainly highly knowledgeable and experienced in such matters and he is entitled to charge, if he can find clients willing to pay his fees, at an hourly rate which can hardly be said to be extravagant when contrasted with the fees one frequently finds being charged to privately paying clients in family cases.’

I asked for a review copy of the InFighter’s Guide to Divorce quite some time back, and the author very promptly dispatched it to me. I very promptly misplaced it and only came across it last week under a Hayne’s manual at my office.

The first thing that strikes you is the size of the book, and at A4 size it looks strangely odd. A bit like a child in suit. It’ s definitely the 19 inch laptop of the netbook generation. Nothing would be lost for most readers if future versions were appropriately sized.

I am mindful that this book likely came about through Marsden’s own dealing with the family law industry, and that the book is this way because he wishes people to challenge the system. As a manual for giving yourself a campaigning focus this book is probably the best there is. Or not wishing to be accused of applying deductive reasoning, its the best campaigning manual I have yet seen. I wouldn’t like it to be the only book I had when going through the system though. It’s just too edgy on it’s own and is best served with a book such as John Bolch’s Do Your Own Divorce.

The content of the InFighter’s Guide to Divorce is at times ballsy and uncompromising, and I for one can forgive Richard some of the more polemic opinions of the family law system, as he is far from wrong about what it’s all about. It’s an industry, of that there is no doubt. Perjury is endemic in family law cases. Men do get asset stripped. A disproportionately high percentage of mothers do get custody of children in the UK.

On a practical level there is lots to commend this book to a litigant in person doing their own divorce, as it shows example petitions, takes you through the sequence of what happens at a contested divorce hearing; something that I haven’t seen in any other lay person friendly book. There is also considerable information on trusts and other devices that some might wish to investigate. However, given the Ponzi-esque nature of some in the financial services sector you might want to be very careful in your selection of financial advisor and institution.

Definitely worth a buy if you are considering marriage or faced with divorce. Should be compulsory reading for men considering marriage and for both parties in a civil partnership.

I had hardly had time to post and Tweet about PTSD and contact when someone emailed me on help@mckenziefriend.com to tell me about a case they were involved in where the mother alleged that she had PTSD and couldn’t countenance contact!

Been extremely busy recently with both work and family and haven’t had much time to spend on the blog. Apologies for that. Hopefully normal service will resume.

Now that I am back in Belfast, my phone and Inbox are filling up with the ‘same old same old’ of hard done by stories about the Magistrates Courts in Omagh, Belfast, Ards and Ballymena. Nothing new there.

One interesting case involves a person with Post Traumatic Stress Disorder (PTSD) who has been seeing their child in a contact centre for TWO YEARS. Can you imagine that…. TWO YEARS of not being able to take your child out of the building; TWO YEARS of not having them stay over; TWO YEARS in the one place. I really feel for this person and their child.

“Well” you might say, “this person must be a risk to their child to be treated in such a way, and the court is merely acting in the best interests of the child”. Well, you would be wrong. The court is merely showing it’s ignorance of PTSD as it isn’t relying on any thing other than the parent supposedly being at risk of abducting their child DUE to the parent’s PTSD.

As I didn’t know that much about the condition I went along to a conference and really got my eyes open as to who might have PTSD in the community, how they might acquire it and how it might be treated.

It was brought to my attention that as well as the obvious candidates of people involved in car accidents, victims and witnesses of physical or sexual assault, first responders and the military, even people such as secretaries typing up reports of traumatic events might acquire PTSD. Wow, there is a potential lawyer feeding frenzy for you; a circumvention of the nervous shock restrictions…

If only some of the judiciary had been at the seminar to hear a bit more about the condition. There were lots of doctors, nurses and people from the voluntary sector there and there was even a CPD point to be had. One thing there wasn’t was a lawyer in attendance. Or a social worker.

Maybe next time the organisers of such a valuable seminar might deign to have it in Belfast and during working hours so that the protectors of our fundamental freedoms can attend.